Tennessee high court refuses to block looming execution

By JONATHAN MATTISEAugust 7, 2018

FILE - In this Aug. 16, 2010 file photo, Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. The Tennessee Supreme Court has refused to stay Thursday's Aug. 9, 2018, scheduled execution of the convicted child killer while the state's new lethal injection protocol continues to be challenged on appeal. The order brings Tennessee within days of killing Irick with a three-drug cocktail, barring some last-minute change. (Michael Patrick/The Knoxville News Sentinel via AP, File)

NASHVILLE, Tenn. (AP) — The Tennessee Supreme Court has refused to stay Thursday’s scheduled execution of a convicted child killer while the state’s new lethal injection protocol continues to be challenged on appeal.

The order brings Tennessee within days of killing Billy Ray Irick with a three-drug mixture, barring some last-minute change. Irick, 59, would be the first inmate Tennessee has executed since 2009. He was convicted of the 1985 rape and killing of a 7-year-old Knoxville girl.

Federal public defender Kelley Henry said she will request a stay with the U.S. Supreme Court. She had asked Gov. Bill Haslam to issue a temporary reprieve while the drugs are studied further. But the governor quickly ruled it out, saying he would not intervene.

“My role is not to be the 13th juror or the judge or to impose my personal views, but to carefully review the judicial process to make sure it was full and fair,” Haslam said in a statement Monday. “Because of the extremely thorough judicial review of all of the evidence and arguments at every stage in this case, clemency is not appropriate.”

The Tennessee Supreme Court’s majority wrote that its rules require proving that the lawsuit challenging the lethal injection drugs is likely to succeed on appeal, but Irick’s attorney has failed to do so.

In a ruling late last month, Davidson County Chancellor Ellen Hobbs Lyle wrote that attorneys for 33 death row inmates, including Irick, didn’t prove that there is a substantially less painful means to carry out the execution or that the drugs the state plans to use would cause the inmate to be tortured to death.

The inmates’ attorneys have appealed to the state Court of Appeals.

For the first time, Tennessee is planning to use midazolam as a sedative, the muscle-relaxer vecuronium bromide and then potassium chloride to stop the heart.

At question is whether midazolam actually is effective in rendering someone unconscious and unable to feel pain from the other two drugs. During the last trial, Henry cited witnesses that described some inmates who still could move, shed a tear, gasp and gulp “like a fish out of water” while being put to death.

“Today’s decision means that Mr. Irick faces a scheduled execution date before the courts have had a chance to thoughtfully consider the challenge to the new lethal injection protocol,” Henry said in a statement Monday.

In a dissenting opinion, Justice Sharon Lee added that she “will not join in the rush to execute Mr. Irick and would instead grant him a stay to prevent ending his life before his appeal can be adjudicated.”

Attorneys for the state have said the U.S. Supreme Court has upheld the use of midazolam in a three-drug series. They say inmates’ attorneys have the burden of identifying an alternative and haven’t.

If the state’s previous drug, pentobarbital, were available, the state would use it, attorneys for the state say. But death penalty opponents have persuaded companies not to sell pentobarbital for executions, they have argued.

The advocacy group Tennesseans for Alternatives to the Death Penalty was planning a rally Tuesday against the execution, saying Irick has a lifelong, severe and well-documented mental illness. They also are opposing the use of midazolam.